Citation NR: 9608423
Decision Date: 03/29/96 Archive Date: 04/11/96
DOCKET NO. 94-16 980 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen a claim for service connection for a low back
disorder.
2. Entitlement to an increased rating for chronic
bronchitis, currently evaluated at 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert W. Legg, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on an appeal from a decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Louis,
Missouri, which denied the benefits sought on appeal. The
veteran, who had active service from June 1973 through July
1974, appealed that decision to the Board, whereupon it was
referred for appellate review.
The veteran’s service representative, in the veteran’s
informal claims, appears to have requested non-service
connected pension benefits. In the informal brief on appeal
the veteran’s service representative appears to have raised
an informal claim for service connection for the veteran’s
diagnosed mild dextroscoliosis of the mid thoracic spine. As
neither matter has not been referred for appellate review the
Board refers both issues to the RO for appropriate action.
The issue of entitlement to an increased evaluation for
chronic bronchitis is addressed in the REMAND portion of this
decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran basically contends that the RO was incorrect in
not granting the benefits sought. Essentially, the veteran
asserts that he has submitted new and material evidence to
reopen a previously denied claim for a low back disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted to reopen the previously denied claim for
a low back disorder and that the RO’s decision dated January
1975 denying service connection for such is final.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal related to service
connection for a low back disorder has been obtained by the
RO.
2. An unappealed rating decision dated January 1975 denied
service connection for a low back disorder.
3. The evidence associated with the claims file subsequent
to the January 1975 rating decision does not demonstrate that
a low back disorder was manifest during service, or otherwise
establish any material facts which were not already of record
at the time of the rating decision.
CONCLUSIONS OF LAW
1. The rating decision dated January 1975 which denied
service connection for a low back disorder is final.
38 U.S.C.A. §§ 1131, 5107, 7105 (West 1991 & Supp. 1995);
38 C.F.R. §§ 3.102, 3.303, 20.1103 (1995).
2. The evidence received since the rating decision dated
January 1975 which denied service connection for a low back
disorder is not new and material, and the veteran’s claim for
that benefit has not been reopened. 38 U.S.C.A. §§ 5107,
5108, 7104, 7105 (West 1991 & Supp. 1995); 38 C.F.R.
§§ 3.102, 3.156 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran originally sought service connection for a low
back disorder in July 1974, claiming that he had an injury to
his back while in service. The veteran’s separation
examination showed that the veteran self-reported back pain
from November 1973. However, the service medical records
showed no other complaints or treatment of back pain during
service or evidence of an injury. After a VA examination
conducted in 1974, the veteran was diagnosed with mild lumbar
lordosis postural, without functional abnormality. Based on
this examination, as well as a review of the veteran’s
service medical records, the RO denied service connection in
a January 1975 rating decision for a low back disorder.
The veteran did not file a notice of disagreement within one
year of the date he was notified of the unfavorable
determination. See 38 U.S.C.A. § 7105(b)(1),(c)(West 1991 &
Supp. 1995); 38 C.F.R. § 20.302, 20.1103 (1995); Person v.
Brown, 5 Vet.App. 449, 450 (1993). A final decision under
the provisions of 38 U.S.C.A. § 7105(c)(West 1991 & Supp.
1995) cannot be reopened and reconsidered by the VA unless
new and material evidence is presented in connection with a
request that the previously denied claim be reopened. See
38 U.S.C.A. § 5108 (West 1991 & Supp. 1995); 38 C.F.R.
§ 3.156(a)(1994); Suttman v. Brown, 5 Vet.App. 127, 135
(1993). When it is determined that new and material evidence
has been submitted, the VA must reopen a previously denied
claim. See Spencer v. Brown, 4 Vet.App. 283, 286-287 (1993);
see also 38 U.S.C.A. § 7104(b)(West 1991 & Supp. 1995).
“Evidence is new and material when not ‘merely cumulative of
other evidence on the record,’ and material when both
‘relative to and probative to the issue at hand’ and of
sufficient weight to present a reasonable possibility that
the new evidence, when viewed in conjunction with the old,
will chance the disposition of the claim. Sklar v. Brown, 5
Vet.App. 140, 145 (1993); Colvin v. Derwinski, 1 Vet.App.
171,174 (1991); see also Manio v. Derwinski, 1 Vet.App. 140,
145 (1991).” Mintz v. Brown, 6 Vet.App. 277, 280 (1994).
In an informal claim dated November 1993 the veteran’s
service representative sought to reopen the claim for a low
back disorder. Evidence submitted subsequently to the
January 1975 rating decision included VA outpatient treatment
records, a transcript of a hearing, and VA examinations dated
August 1993 and July 1993 diagnosing the veteran with mild
dextroscoliosis of the mid thoracic spine and calcification
of the spine. This evidence is in addition to that
previously associated with the claim file.
While such information is new, in that it was not previously
physically of record, it is not material to the veteran’s
claim for service connection for a low back disorder. VA
outpatient records show that the veteran was treated in
November 1977 for back pain which the veteran reported was a
result of moving furniture. Other VA outpatient records
dated February 1978 show complaints and treatment of back
pain, which the veteran stated started five years before,
during his time in service. The treating physician did not
find a physical abnormality. VA outpatient records from
January 1989 show complaints of back pain that the veteran
reported resulted from a bus accident. None of the treating
physicians diagnosed that the veteran’s back disorder was a
result of his time in service.
In addition, the most recent VA examination dated August 1993
did not continue the diagnosis of mild lumbar lordosis
postural from the October 1974 VA examination. Rather, the
veteran was diagnosed with a different back disorder.
Further, this diagnosis was almost 20 years after the
veteran’s separation from service. There is no evidence
associated with the claims file to show that this current
diagnosis is in any way related to the veteran’s time in
service, or for that matter the earlier diagnoses. What is
missing is a link between a current diagnosis or clinical
finding and a disease or injury suffered by the veteran
during his time in service. The evidence submitted since the
January 1975 rating decision does not provide that link.
Accordingly, the Board concludes that new and material
evidence has not been submitted to reopen the previously
denied claim for service connection for a low back disorder.
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to reopen his claim for
service connection for a low back disorder. See Graves v.
Brown, No 94-915, slip op. at 4-5, (U.S. Vet. App. Jan. 30,
1996); Robinette v. Brown, 8 Vet.App. 69, 77-78 (1995).
ORDER
New and material evidence not having been submitted to reopen
a claim for service connection for a low back disorder, the
appeal is denied.
REMAND
The veteran sought to increase his disability rating for
chronic bronchitis from a current evaluation of 10 percent.
A VA examination dated December 1993 diagnosed the veteran
with reactive airway disease. In addition the veteran has
submitted additional treatment records from a subsequent
hospitalization, although apparently the hospitalization was
not as a result of chronic bronchitis. However, it is not
clear from the rating decision or the VA examination how the
veteran’s reactive airway disease was related, if at all, to
his service connected chronic bronchitis.
Therefore, in order to give the veteran every consideration
with respect to the present appeal, it is the Board’s opinion
that further development of the case is necessary.
Accordingly, this case is REMANDED for the following action:
The veteran should be afforded a
respiratory examination to ascertain the
nature and severity of his service-
connected chronic bronchitis and all
secondary diseases. The examiner is also
asked to render an opinion as to the
relationship, if any, of the diagnosed
reactive airway disease to the veteran’s
chronic bronchitis. Any and all
indicated evaluations and studies should
be conducted. The extent of all
functional limitations should be
reported. Copies of all pertinent
medical records in the veteran’s claims
file, or in the alternative, the claims
file itself, must be made available to
the examiner for review.
When the development requested has been completed, the case
should again be reviewed by the RO on the basis of the
additional evidence. If the benefits sought are not granted,
the veteran and his representative should be furnished a
supplemental statement of the case, and be afforded a
reasonable opportunity to respond before the record is
returned to the Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The veteran is free to submit any additional
evidence he desires to be considered in connection with his
current appeal. No action is required until he is notified.
CONSTANCE B. TOBIAS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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